At first blush, philosophies of law are like parallel lines: Because they purport to address different

questions, they end up talking past each other. However, I will argue that they do have areas of
genuine disagreement by comparing the positivists and natural law theorists, the ALRs and the
positivists, as well as Unger and both LP and NLT. Moreover, I argue that they disagree ultimately on
the most fundamental issue of all the question of a viable starting point in constructing a philosophy
of law.

Prima facie, LPs and NLTs have no quarrel with each other. Positivists, as exemplified by Hart, are
interested in evaluation. Indeed, Hart explicitly states in his Postscript that his theory is descriptive,
morally neutral, with no justificatory aims. This contrasts with natural law theorists like Finnis, who
are concerned with justifying law; what the law is must depend on what it ought to be. However, upon
further examination the debate is not one at cross purposes. Finnis points out that Hart is evaluative
and prescriptive, contrary to his assertions. Harts evaluation lies in choosing to regard social fact as
determinative. According to Hart, law is whatever is in line with the rule of recognition (RoR). A rule is
a valid legal rule when it complies with the criteria of the RoR. The RoR exists as a complex concordant
practice of courts, officials and private persons in identifying the law by reference to the criteria
therein. The evaluative quality of Harts thesis is more clearly elucidated if we compare this with the
alternative view: that law must conform to some higher norm, be it reason or natural law. Moreover,
Hart is prescriptive in that he appears to expect the RoR to be used as a test for lawhe is prescriptive
in setting the standard for what counts as law. But it should be noted that the critique of being
prescriptive may not apply to legal positivists such as Kelsen. Kelsens theory of law is more clearly
descriptive in that he does not intend for his basic norm to be applied (indeed he objected when his
thesis was used to justify constitutional change in Southern Rhodesia). Kelsen is also careful to state
that a particular basic norm is presupposed only for that point in time, and it may well change. This
emphasises the lack of enduring quality, and substantiates the point that the basic norm is not
intended to be prescriptive. But returning to the alleged debate at cross purposes between Finnis and
Hart (as a microcosm of the debate between LP and NLT), there is indeed genuine disagreement: Hart
is both prescriptive and evaluative, and his theory therefore competes on the same plane as other
evaluative theories like Finniss.

Moving on to consider both theories as evaluative theories, we face another apparent lack of meeting
of minds. While Hart proposes a test for law in the form of the RoR, Finnis is not concerned with
formulating a test for law. Instead, he answers the often-neglected question of how an authoritative
rule can be generated without prior authorisation. But I submit that there is still a relevant debate
going on, insofar as we consider their take on whether unjust laws are laws. Finnis defines as law in
the focal sense, legal rules made by an effective authority that are also justified by the common good
and buttressed by sanctions. Law that fails to meet this definition is still law, albeit law in the non-
focal sense.